9911796707
TMI Blog2009 (7) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... n the representation made by the petitioner, dated July 1, 2003. It is the case of the petitioner that they are registered dealers on the files of the Commercial Taxes Department, manufacturer and seller of chocolates, toffees and "Halls". They have obtained licence from the Director of Indian of Medicine under rule 154/155 in form No. 25(D) vide Licence No. AUS 547 for the manufacture of "ayurvedic drug". According to the petitioner, the manufacture of "Halls", is popularly known in the trade circle/ common man understanding as a remedy or medicine for the cold, cough, sore throat caused by virus. "Halls" contains the following ingredients: (i) Pudina (ii) Nilgiri thailam (iii) Narangi thailam (iv) Nimbuka ka thailam (v) Lemon oil The goods manufactured by the petitioner, viz., halls were also tested by the Central Research Laboratory situate at "Dhanvantari Marg, Nagpur" and the report by the General Secretary of Bhartiya Vaidyak Samanvaya Samati, principal and lecturer of Shri Ayurved Mahavidyalaya also states that "Halls" contains ayurvedic medicines and not otherwise. Under the Central Excise Act, 1944, there was a dispute as to whether "Halls" is ayur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls", licence obtained, and the order of the apex court. Therefore, the petitioner preferred an application, dated June 27, 2003, along with a letter dated July 1, 2003 for clarification from the Special Commissioner under section 28A of the TNGST Act for the purpose of uniformity of assessment, as per section 28A(2) of the Act, with all the details and further requested the said authority to clarify the rate of tax applicable to "Halls". In response to the application submitted by the petitioner and in exercise of the powers conferred under section 28A of the TNGST Act, the Special Commissioner in D. Dis. Acts.Cell-LC/41976/2003, dated January 2, 2004, clarified that "Halls" is an ayurvedic medicine eligible for concessional rate of tax at four per cent under G.O. Ms. No. 65, CT, dated April 4, 2000 (Not. No. II(I)CT/22(e)/2000 Gazette, dated April 4, 2000 with effect from April 4, 2000) and G.O. Ms. No. 33, CT, dated March 27, 2002 (Not. No. II(I)/CT 19(b-19)/2002 Gazette, dated March 27, 2002). According to the petitioner, the said circular issued by the Special Commissioner is still in force. Pursuant to the notification stated supra, the petitioner filed returns disclosing sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties, such as aromatic, carminative, stimulant, antispasmodic, stomachic and emmengogous. Insofar as nilgiri oil is concerned, it has the properties of ani-neuralgic. He submitted that mere presence of sugar in the said tablet cannot categorise it as confectionary and "Halls" range of products can be classified only as ayurvedic medicine. Placing reliance on the decisions in Amurtanjan Ltd. v. CCE reported in [1996] 9 SCC 413, Commissioner of Central Excise v. Sharma Chemical Works reported in [2003] 132 STC 251 (SC); [2003] 5 SCC 60, CCE v. Pandit D.P. Sharma reported in [2003] 5 SCC 288, Naturalle Health Products v. CCE reported in [2003] 1 RC 952; [2004] 9 SCC 136, Dabur India Ltd. v. CCE reported in [2005] 4 SCC 9, Puma Ayurvedic Herbal (P.) Ltd. v. Commissioner, Central Excise, Nagpur reported in [2006] 145 STC 200 (SC); [2006] 6 RC 328; [2006] 3 SCC 266, CCE v. Zandu Pharmaceuticals reported in [2007] 8 RC 16, the learned counsel for the petitioner submitted that when the apex court has classified goods containing similar ingredients as ayurvedic medicines, issuance of the impugned notice, for reassessment is arbitrary and therefore, it is liable to be set aside. Ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , wherein, the apex court held that the order of the Tribunal was quite wrong in allowing the appeal filed by the Central excise authorities, classifying "mint tablets" as "confectionary" and (vi) order of the Assistant Commissioner of Central Excise, Bangalore, in the petitioner's own case, classifying "Halls" only as medicament. Referring to clarification No. 1 of 2004 (D. Dis. Acts. Cell. 11/48940/2003, dated January 2, 2004), learned counsel for the petitioner submitted that the said clarification was applied by the Commercial Tax Department, in their assessment proceedings in TNGST-5162095/2001-02, dated March 15, 2004 in the case of M/s. Solaimalai Agencies, Madurai, and the tax collected over and above four per cent, equivalent to Rs. 19,15,046 was appropriated towards penalty under section 22(2) of the TNGST Act, 1959 and that no appeal was filed against the said order, dated March 15, 2004. He therefore, submitted that when the Revenue had appropriated the excess tax over and above four per cent as penalty, the logical conclusion that could be arrived at by the registered dealer and the assessing authorities should be that, the rate of tax applicable to the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act, such as the circulars of the Commissioner of Commercial Taxes, Chennai (Clarification No. 3/2004, dated January 2, 2004 and Clarification No. 106/04, dated April 6, 2004). He further submitted that the reasons contained in the impugned order and reference to the decision in Collector v. Warner Hindustan Ltd. reported in [1989] 42 ELT 33, do not exist at all, in view of the fact that the apex court has set aside the above decision in Warner Hindustan Ltd. v. Collector of Central Excise reported in [1999] 6 SCC 762. Referring to the order of the Assistant Commissioner of Central Excise, Bangalore, dated August 25, 1999, made in the case of Warner Lambert Co. Ltd., which was taken over by the petitioner, classifying as medicament, he submitted that the decision of the assessing authority to revise the assessment of the year 2004-05, based on the audit note, is only a change of opinion of the assessing authority and in view of the decision of the Supreme Court in Binani Industries Limited v. Assistant Commissioner of Commercial Taxes [2007] 6 VST 783, a change of opinion cannot give rise to fresh cause of action, warranting revision of tax. Placing reliance on the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al position or fresh facts come to the notice of the Revenue, which were not taken note at the time of original assessment, it is always open to the Revenue, to issue notice to the dealer for revision of assessment and the petitioner-assessee has to submit their objections, if any. The learned Additional Government Pleader further submitted that in the absence of abuse of powers or patent illegality in issuing the prerevised notice, the petitioner cannot seek for an extraordinary remedy of writ of prohibition against statutory authorities and granting any relief, would amount to preventing the assessing authority from discharging his statutory duty and hence, the writ petition is not maintainable in law. Placing reliance on the decision in Warner Hindustan Ltd. v. Collector of Central Excise [1999] 6 SCC 762, learned Additional Government Pleader submitted that when the Supreme Court has set aside the order of the Excise Tribunal as wrong and remitted the matter back with a direction to, excise authorities to issue a fresh notice to the assessee before classifying "Halls" tablets as confectionary, it is open to the first respondent to issue the impugned pre-revision notice, and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional Government Pleader further submitted that when the Division Bench of this court has categorically held that a clarification issued under section 28A of the Tamil Nadu General Sales Tax Act, is not binding on the assessing authorities, when they function in quasi-judicial capacity, it is for the petitioner to canvass the applicability of the clarification issued by the Commissioner of Commercial Taxes, Chennai, before the assessing authority, whose notice is impugned in this writ petition. Reliance is placed on the decisions in A. S. Balu v. Special Commissioner and Commissioner of Commercial Taxes [2004] 134 STC 524 (TNTST), Salt Sales Corporation v. Deputy Commercial Tax Officer (Additional) [2004] 134 STC 529 (TNTST) and Pizzeria Fast Foods Restaurant (Madras) Pvt. Ltd. v. Commissioner of Commercial Taxes, Chennai [2005] 140 STC 97 (Mad). Placing reliance on a decision in Union of India v. Tata Engineering and Locomotive Ltd. reported in AIR 1998 SC 287, he submitted that the applicability of the judgment of the superior court to the facts of each case, has to be considered by the assessing/appellate authority and therefore, the manner and mode of assessment cannot be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tamil Nadu General Sales Tax Act, learned Additional Government Pleader submitted that if the turnover of the dealer had been assessed at a lower rate, then the assessing authority can always reassess the turnover and therefore, the impugned notice is valid in law. He further submitted that all the contentions that are raised in this writ petition are still open to the petitioner, and therefore, they have to submit their objections with adequate evidence to substantiate their claim that "Halls" range of products are medicine and prayed that the matter be left to the assessing authority to examine as to whether product "Halls" is an ayurvedic medicine or confectionary. For the abovesaid reasons, he prayed for dismissed of the writ petition. Heard the learned counsel for the parties and perused the materials available on record. Before adverting to the facts of this case, it is relevant to extract few decisions of the Supreme Court as to when a writ of prohibition can be issued by the High Courts. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under article 226 is not bound by the technical Rules a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial discipline of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction district from appellate jurisdiction. . ." It is settled law of the land that writ of prohibition can be issued as soon as inferior court/Tribunal proceeds to apply a wrong principle of law when deciding a fact on which jurisdiction depends. The effect of the remedy is an injunction against the court of Tribunal commanding it to cease from the exercise of jurisdiction to which it has no legal claim. Therefore, it is necessary to adjudicate the issues raised with reference to the principles of law, stated supra. Yet another aspect to be noted is that the first respondent has not denied the fact that "Halls" range of productions contains ingredients stated supra. Nor he has denied that the circular clarifications No. 3/2004, dated January 2, 2004 and 106/2004, dated April 6, 2004, issued earlier, in respect of the petitioner, under the Tamil Nadu General Sales Tax Act, as it stood before December 31, 2006 are still in force and not resci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1959. The petitioner, being the manufacturer and seller, has sent a letter, dated July 1, 2003, and sought for a clarification on the rate of tax to be levied to the product "Halls". They have enclosed a copy of the order passed by the Deputy Commissioner (Appeals) First, Commercial Taxes, Jaipur, dated October 31, 2001, on Warner and Lambert India Pvt Limited (stated to be taken over by M/s. Cadbury India Ltd. with effect from March 30, 2003), wherein, it has been held that "Halls" is only an ayurvedic medicine and not a confectionary. Along with the said letter, they have also submitted a report from Shri Ayurved Mahavidyalaya, Nagpur. Additional particulars were also submitted to the Special Commissioner of Commercial Taxes, Chennai, on June 27, 2003. Perusal of the order in original, dated August 25, 1999 of the Assistant Commissioner of Central Excise D, Bangalore, shows that on an earlier occasion, the Assistant Commissioner of Excise, had classified "Halls" under Tariff 3003/19, i.e., as patent or proprietary medicines. Later, the Collector (Appeals) overruled the said classification and classified it under Tariff 3003.30. On departmental appeal, the Tribunal reclassif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (CT), Fast Track Assessment Circle IV, has imposed sales tax at four per cent on the sale of "Halls" and appropriated sales tax over and above four per cent towards penalty and ordered as follows: "In respect of the penalty proposed under section 22(2) of the Act, the dealers in their letter, dated September 8, 2005 have stated that they have remitted the tax collected at ten per cent along with SC due in respect of sales of Halls and have expressed their willingness to have the tax and surcharge collected over and above four per cent with SC due, applicable to Halls, to be recovered as penalty under section 22(2) of the Act. Hence, the excess collection of tax and surcharge is recovered by way of penalty under section 22(2) of the Act, as already proposed and also admitted by the assesseecompany." The clarifications issued by the Commissioner of Commercial Taxes, Chennai, in respect of "Halls" and similar products are extracted hereunder: (a) Clarification No. 44/03, dated February 28, 2003, issued to M/s. Solaimalai Agencies, relied on by the Commercial Tax Officer (FAC) Madurai Rural South Circle in TNGST 5162095/2001-02, at the stage of pre-assessment notice, is as fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent from April 4, 2000." (e) In respect of Acti V, the Commissioner of Commercial Taxes, hasissued a clarification in No. 132 of 2005, dated September 15, 2005, which runs as follows: "Acti-V is classified as ayurvedic product and taxable at reduced rate of four per cent under entry No. 19(i)(b) in Part C of the First Schedule read with Notification No. II(1)/CT/22(e)/2000, dated April 4, 2000 and Notification No. II(1)/CT/19(b-19)/2002, dated March 27, 2002 with effect from April 4, 2000." (f) Again in respect of another dealer, viz., Tvl. Perfetti Van Melle India (P) Ltd., the rate of tax applicable to "Chlora Mint" was fixed at four per cent and it is as follows: "The petitioner is informed that 'Chlora mint' is a product manufactured from out of peppermint thailam, pudina satra, sugar base approved flavour and colour and is classified as an ayurvedic product, taxable at reduced rate of four per cent under entry No. 19(i)(b) in Part C of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959 read with Notification No. II(1)/CT/22(e)/2000, dated April 4, 2000 and Notification No. II(1)/CT/19(b-19)/2002, dated March 27, 2002." Readings of the circulars issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayurvedic medicine under sub-heading 3003.30 or as a confectionary under sub-heading 17.04. The appellant therein claimed that the above tablets are to be classified as ayurvedic medicine under tariff heading No. 3003/03 under the Central Excise Tariff Act. A show-cause notice was issued as to why these tablets should not be classified under the tariff heading 3003/19 as "patent or proprietary medicines". The Assistant Collector, after hearing the appellant therein, held that the tablets were patent or proprietary medicines classifiable under heading 3003.19. In the appeal filed by the appellant-company, the Collector of Central Excise (Appeals) held that the tablets were ayurvedic medicines classifiable under heading 3003.19. The excise authorities went on appeal to the Tribunal and for the first time, took the stand that the tablets were correctly classifiable under heading 17.04 as "confectionary". But the appellant, stuck to its stand that the tablets were ayurvedic medicines classifiable under heading 3003.30. The Tribunal agreed with the contention of the Department and held that all the goods are assessable under tariff heading 17.04. While testing the correctness of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Tariff Act, 1985. In reply, dated March 23, 1999, the company has contended that Halls range of products are rightly classifiable under Chapter 30.03 of the Central Excise Tariff and the said products are only medicaments. Considering the relevant provisions of the Central Excise Tariff Act, the Assistant Commissioner of Central Excise (D), Bangalore, in his order, dated August 25, 1999, held as follows: "It is true that Central Excise Tariff does not specifically define the product, but speaks of the ayurvedic preparation. Just because it contains sugar or sweetening ingredients also it cannot be averred that it is a confectionary. There is also no evidence on record to show that the product is considered as a sweetening material in bulk quantity cannot change the quality of the active ingredient, in the product. Thus, I hold that the product is correctly classifiable under 3003.30 of the Central Excise Tariff." Eventhough the judgment of the Supreme Court in Warner Hindustan Ltd. v. Collector of Central Excise reported in [1999] 6 SCC 762, decided in the case of the petitioner, has not been referred to in the order, dated August 25, 1999 of the Assistant Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax applicable to the product "Halls", the petitioner has enclosed the orders passed by the Central Excise Authority, Bangalore, dated August 25, 1999 and the appellate authority, Jaipur, dated October 31, 2001, stated supra, and the said fact is not controverted in the counter-affidavit. Based on the request, dated July 1, 2003 and the supporting materials stated supra, the Commissioner of Commercial Taxes, Chennai, in his clarification No. 3/2004, dated January 2, 2004, and further clarification No. 106/2004, dated April 6, 2004, has clarified that the rate of tax applicable to "Halls" is only four per cent with effect from April 4, 2000. Therefore, as rightly contended by the learned counsel for the petitioner, the decision in Collector of Central Excise v. Warner Hindustan Ltd. reported in [1989] 42 ELT 33 (Tribunal), can no longer be applied, when the said judgment of the Tribunal has been set aside by the Supreme Court. What is taken into consideration by the Assistant Commissioner (FAC), Circle IV, Chennai 6, in the impugned notice, is the clarification No. 44/2003, dated February 28, 2003, issued in respect of M/s. Solaimalai Agencies, where Halls was earlier declared as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an ayurvedic medicine taxable at four per cent, by way of Clarifications No. 3/2004, dated January 2, 2004 and 106/ 2004, dated April 6, 2004, issued to the petitioner, should the dealer be again called upon to place all the materials and prove that is only an ayurvedic medicine. It is the contention of the respondent that in Pizzeria Fast Foods Restaurant (Madras) Pvt. Ltd. v. Commissioner of Commercial Taxes, Chennai reported in [2005] 140 STC 97 (Mad), a Division Bench has held that clarification issued under section 28A will not be binding on the assessing authority and therefore, it would not be appropriate to prevent them from exercising the jurisdiction and the manner of assessment should not be controlled by the court, as held in Orient Paper Mills Ltd. v. Union of India reported in [1969] 1 SCR 245. In Pizzeria Fast Foods Restaurant (Madras) Pvt. Ltd. v. Commissioner of Commercial Taxes, Chennai reported in [2005] 140 STC 97 (Mad), the question that was posed before this court was relating to challenge of a clarification issued by the Commissioner of Commercial Taxes, Madras, under section 28A of the Tamil Nadu General Sales Tax Act, 1959. The assessment was based on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Commissioner, as such clarifications under section 28A are not binding on him when he is functioning in a judicial capacity, and they are only binding when he is functioning in an administrative capacity, when initially fixing the rate of tax on a specific commodity. 29. In Kerala Financial Corporation v. Commissioner of Income-tax [1994] 210 ITR 129 (SC), the Supreme Court held that the circulars issued by the Central Board of Direct Taxes under section 119 of the Income-tax Act, 1961, could not override or detract from the provisions of the Act, as that would be destructive of all known principles of law and would be giving a power to the executive authority to amend the provisions of the Act. In our opinion, the same principle shall apply to section 28A of the Act also. The Commissioner cannot take a view which is contrary to the provisions of the Act or Rules made thereunder as interpreted by the courts or the statutory authorities under the Act when they are performing judicial or quasijudicial functions (vide Sales Tax Officer v. Shree Durga Oil Mills Ltd. [1998] 108 STC 274 (SC); [1998] 97 ELT 202 (SC)." In the reported judgment, based on a circular issued on Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umption of jurisdiction and it should be tested as to whether the assessing officer had in his possession certain definite and relevant material facts which were not taken note of at the time of initial assessment and mere change of opinion on the same set of facts and law does not justify reassessment. This court is of the opinion that the powers of this court are not fettered to examine to the limited extent, as to whether the conclusion arrived at by the assessing officer was based on any material on record which he could or could not have considered at the time of initial assessment. Of course, it is open to the assessing officer to reopen an assessment on the basis of some fresh facts which had come to light, which were not disclosed or unearthed by the assessing officer on further enquiry or examination of records. "Change of opinion", presupposes that an opinion must have been formed at the original stage, based on material facts. There must be some positive fact or records to show that the opinion arrived at the initial stage was erroneous. If the assessing authority has to consider the very same materials on record and come to a different conclusion, then certainly it am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-affidavit is silent about the course of action taken by another assessing authority, when he had penalised the assessee for collection of excess tax. Now by the impugned order the first respondent, based on the clarification issued in the year 2003, has proposed to revise the assessment. If that be the case, would it not fall within the ambit of change of opinion, by another assessing authority. Considering the totality of the case, this court is of the considered view that the impugned show-cause notice is nothing but an outcome of a change of opinion. In this context, the decision of the Supreme Court in Binani Industries Limited v. Assistant Commissioner of Commercial Taxes reported in [2007] 6 VST 783 (SC), would be applicable, where the Supreme Court held that on mere change of opinion, an assessment cannot be reopened and further held that the circulars issued by the Customs Board of Central Excise are binding on the departmental authorities and they cannot take a different stand and repudiate the circulars issued by the Board, on the basis that it was inconsistent with the statutory provisions. Let me now extract few decisions of the Supreme Court on the binding effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onus of burden. In Hindustan Ferodo Ltd. v. Collector of Central Excise, Bombay reported in [1997] 106 STC 214 (SC); [1997] 89 ELT 16 (SC), the Supreme Court held that the onus of establishing that a product falls within a particular item is on the Revenue. It has been held that if the Revenue leads no evidence, then the onus is not discharged. A perusal of the impugned notice does not indicate as to whether the Department had made any enquiries or placed any evidence, to show that in common parlance, the product, "Halls" is not used medicament. In the case on hand, as stated supra, the Commissioner of Commercial Taxes, Chennai, after considering the entire particulars submitted by the petitioner along with his application, dated July 1, 2003, has already clarified that the product as medicament, eventhough it contains a lesser percentage of the ingredients, such as, pudina and nilgiris. In Commissioner of Central Excise v. Sharma Chemical Works reported in [2003] 132 STC 251 (SC); [2003] 1 RC 323, this court noticed its earlier decisions to hold that onus of proof to show that a particular product is classifiable under one entry or the other is on the Revenue.: "Banphool Oil" was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusively ayurvedic medicines or that they are used in the ayurvedic system of medicine, though is a patented medicine. This is especially so when all the ingredients used are mentioned in the authoritative books on ayurveda. As rightly contended by counsel for the appellants, the essential character of the medicine and the primary function of the medicine is derived from the active ingredients contained therein and it has certainly a bearing on the determination of classification under the Central Excise Act. As held in Amurtanjan's case [1996] 9 SCC 413; [1995] 77 ELT 500 (SC), the mere fact that the ingredients are purified or added with some preservatives does not really alter their character." Pudina and Nilgiris thailam, etc., are generally used for ayurvedic preparations and that is why, the Commissioner of Commercial Taxes, Chennai, has clarified that Halls tablets would fall under entry 19(1)(b) in Part C of the First Schedule. As rightly contended by the learned counsel for the petitioner, the extent of quantity of medicament used in a particular product and the fact that the use of the medical element in the product was minimal, that would not detract that the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The principle that was first laid down by the Supreme Court in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola [1961] 12 STC 286 (SC), has been followed in number of cases, such as, Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan reported in [1980] 46 STC 256 (SC), Atul Glass Industries (P.) Ltd. v. Collector of Central Excise [1986] 63 STC 322 (SC), Collector of Customs v. Swastic Woollens (P.) Ltd. [1989] 72 STC 201 (SC), United Copiex (India) Pvt. Ltd. v. Commissioner of Sales Tax [1996] 101 STC 536 (SC). It is also held that the words of everyday use must be construed not in scientific or technical sense but only in common parlance (if there is a conflict between the two), unless a contrary intention is clearly expressed in the statute. [Commissioner of Sales Tax v. Jaswant Singh Charan Singh [1967] 19 STC 469 (SC)]. The decisions relied on by the first respondent in the counter-affidavit are not applicable to the facts of this case. The decision of the apex court in Orient Paper Mills Ltd. v. Union of India reported in [1969] 1 SCR 245, related to the period 1961, when there was no section 35B of the Central Excise Act, which was introduced in 1985, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of each case. But at the same time, if the assessing authorities take a different view, one proposing to revise the assessment based on the clarifications issued in 2003 that sale of "Halls" is taxable at 12 per cent and the other, revising the turnover holding that, "Halls" range of products is taxable at four per cent and thus, following the clarifications of the year 2004, and when the same is brought to the notice of this court, the assessing authorities have to be prevented from acting contrary to their circulars, issued in respect of the very same assessee. As stated supra, the apex court in Binani Industries Limited v. Assistant Commissioner of Commercial Taxes, VI Circle, Bangalore [2007] 6 VST 783, has held that even at the stage of pre-revision notice initiated contrary to the beneficial circulars, the dealers can approach the court of law for remedy. It is also to be noted that the applicability of Notification No. 1 of 2004, dated January 2, 2004 and No. 106 of 2004, dated April 16, 2004 to the case of the petitioner is not disputed by the first respondent. As rightly contended by the petitioner, the circulars are not withdrawn or rescinded by the Revenue and they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet if the authority acts contrary to the clarificatory circulars and if it lacks jurisdiction, it can be subjected to judicial review in writ jurisdiction. Reference can be made to few judgments of the Supreme Court. In Whirlpool Corpn. v. Registrar of Trade Marks reported in [1998] 8 SCC 1, the Supreme Court, held that: "14. The power to issue prerogative writs under article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the fundamental rights contained in Part III of the Constitution but also for 'any other purpose'. 15. Under article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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